The COVID-19 pandemic has changed the way in which we live our lives, with strict limitations on social gatherings of any kind, including funerals. However, deaths obviously continue to occur during this period, with death rates among certain population groups on the rise, and delaying memorials and funerals until after the current health crisis has ended, whenever that may ultimately be, may be impractical and/or prolong the grieving process.
A review of recent news articles suggests that several trends are beginning to emerge in respect of funerals as large in-person gatherings continue to be prohibited throughout Canada and much of the world:
- Some funerals are being held using video-conferencing software such as Zoom, with enhanced ability for family members living abroad to participate, with some funeral services continuing in-person, with very limited attendance (typically limited to five individuals, including the officiant) and distance of no less than six feet between attendees who are not members of the same household;
- Communities such as Flatrock, Newfoundland, have seen cars line up along the side of a street to blink their lights as the hearse passes by on its way to the cemetery as a way to show their respect without potential exposure to the virus;
- In Quebec, because of concerns over transmission, embalming in respect of the remains of a victim of COVID-19 is prohibited, there are restrictions as to the timing for visitations and interment, and funeral-related service providers are relying upon protective equipment (such as N95 masks and gloves) to stay safe while handing remains of COVID-19 victims;
- Funerals in Calgary and elsewhere are reportedly “going digital”, with funeral home directors citing the increased role of online photo gathering and live-streamed funeral services;
- Online visitations are gaining popularity (according to funeral workers in Windsor), while some Jewish families are sitting shiva on Zoom.
It will be interesting to see whether any of these trends survive the lessening of restrictions on social gatherings.
Thank you for reading.
Other blog entries that may be of interest:
Virtual court hearings are becoming the new norm. More and more, the courts are prepared to proceed without the physical attendance of counsel or the parties.
Recently, the Divisional Court made a detailed Case Management Endorsement setting out how a hearing was to proceed. The case, Ontario v. Association of Ontario Midwives, is to proceed as a 3-day hearing before a 3-judge panel. Particulars of the procedure to be followed include:
o The hearing is to be conducted as a Zoom conference;
o Counsel are not to gown. Instead, business attire is required for anyone with a speaking role at the hearing. Although babies and dogs are not specifically prohibited from participating, the court directed that “All parties must ensure that they participate in the videoconference from appropriate surroundings and that they (and the Court) will not be interrupted or disturbed during the hearing.”;
o Specific directions with respect to the filing of electronic materials are provided. These include:
· No individual email can be larger than 10 MB;
· All affidavits and each exhibit are to be sent as separate pdf attachments, and are to be clearly identified;
· Factums are to be filed in Word format; and
· Books of Authorities are not required. However, Factums should have hyperlinks to CanLII versions of cases;
o The hearing is to follow a “webinar format” and will accommodate up to 500 members of the public. Particulars will be confirmed to the parties in due course by the court. (It is not clear how the public is to find out the particulars: see Stuart Clark’s blog on open courts and E-Courts, here.)
Virtual hearings, while becoming more common, have not yet become universal or mandatory. In an endorsement dated April 14, 2020, Justice Morgan addressed a proposed 2-day virtual hearing for May 4 and 5, 2020. The Defendants wanted to proceed, but Plaintiffs’ counsel was “reluctant”. Plaintiffs’ counsel argued that the materials were voluminous, and this would create logistical difficulties for counsel. Further, they would not be able to have their entire team together in the same room in order to provide the support required during the hearing. The hearing, seeking leave to proceed with a class proceeding, could spell the end of the Plaintiffs’ and the class’s claim if not successful, and counsel did not want to put their client and putative class members at risk in what would be “a rather novel format for a complex and lengthy motion with a heavily documented record.”
While the court did not want to delay the litigation, it did not require that the matter proceed by way of a virtual hearing. Per Morgan J., “…I do not think it appropriate to compel the moving party to proceed under conditions where Plaintiffs’ counsel perceive that they may not be able to present the case as effectively as they would in person.”
Sometimes you Zoom, sometimes you don’t.
Mediation, with plenary sessions, small break-out rooms for parties and their counsel, and a mediator shuttling between the rooms seem like a distant, archaic memory. The former format of mediation is the antithesis of social distancing.
(I find it hard to now watch a tv show or movie without thinking to myself, “That’s not very good social distancing.”)
However, the show, litigation and mediations, must go on. Welcome to the age of virtual mediation.
Programs such as Zoom allow for parties to meet and discuss ideas and resolve differences without being physically in the same room. While the virtual alternative is not perfect, it is workable.
With Zoom, there are a few ways for mediations to be accommodated. One option is for the organizer to set up several online meetings: one to be used as a plenary session where everyone has access, and one for each of the parties to the litigation. In the plenary room, all of the parties and their counsel can join. In the parties’ separate room, only the party and their counsel can participate, with the mediator joining and leaving as necessary.
Another option is for the organizer to set up one meeting. The organizer would be able to admit participants into the meeting room, or put them into a virtual “waiting room” while others remain in the meeting room.
Another consideration when organizing a Zoom mediation is to ensure that the organizer has a Pro account or better. While the Basic account is free, it only allows for meetings of 40 minutes or less. The Pro account, at $20 per month per host, allows for meetings of up to 24 hours, which should probably enough for most mediations. (Some mediators are slow mediators: you know who you are.)
Some reporting services are offering virtual mediation assistance. Neesons, for example, can offer extensive technical support for mediations, examinations and arbitrations. They have also hosted a number of presentations on virtual examinations, arbitrations and mediations. Contact them if you want more information.
(Fun fact: Zoom Video was trading at $68.04 on December 31, 2019. On March 23, 2020, it was trading at $159.56. As of the time of writing this (April 2, 2020), share prices had relaxed to $118.10.)
Thank you for reading. Stay healthy. Practice safe litigation.